Bombay High Court Weekly Round-Up: 2022 LiveLaw (Bom) 46 - 2022 LiveLaw (Bom) 55
A weekly round-up of important legal developments in Bombay.Nominal IndexDatta Mane vs State of MaharashtraNitesh Singh & Anr. v. Municipal Corporation of Gr. Mumbai & Ors. Saurabh Ashok Nikam vs State of Maharashtra Amitabh Bachchan & Anr. V/s. The Municipal Corporation of Gr.Mumbai & Ors. Hiten Dhirajlal Mehta vs Bhansali Productions Federation of Retail Trade...
A weekly round-up of important legal developments in Bombay.
Nominal Index
Datta Mane vs State of Maharashtra
Nitesh Singh & Anr. v. Municipal Corporation of Gr. Mumbai & Ors.
Saurabh Ashok Nikam vs State of Maharashtra
Amitabh Bachchan & Anr. V/s. The Municipal Corporation of Gr.Mumbai & Ors.
Hiten Dhirajlal Mehta vs Bhansali Productions
Federation of Retail Trade vs State of Maharashtra
High Court on its own motion (in the matter of Jilani Building at Bhiwandi) vs Bhiwandi Nizampur Municipal Corporation & Others
Nanasaheb Vasantrao Jadhav vs State of Maharashtra and Ors.
Ramesh Tukaram Vavekar v. State of Maharashtra & Anr.
1. Maharashtra Govt Appoints DGP From UPSC Panel, Bombay High Court Disposes Of Advocate's PIL
Case Title: Datta Mane vs State of Maharashtra
Citation: 2022 LiveLaw (Bom) 46
High Court disposed of an advocate's PIL seeking appointment of a permanent Director General of Police in Maharashtra from the three names recommended by the Union Public Service Commission (UPSC) panel after the State appointed IPS officer Rajnish Seth as the new DGP on February 18.
The state decided to reconsider its decision after the High Court observed that the state had gone out of it's way to push the case of its senior most IPS officer - Sanjay Pandey's name for DGP.
Case Title: Nitesh Singh & Anr. v. Municipal Corporation of Gr. Mumbai & Ors.
Citation: 2022 LiveLaw (Bom) 47
Observing that a PIL filed by rival political party members (BJP and MNS) against the ruling Maha Vikas Aghadi coalition in Maharashtra was "politically motivated" and without "necessary disclosures" the Bombay High Court dismissed the plea and imposed costs of Rs 50,000 on the petitioner
The bench held that under Article 243ZA(2) the state is permitted to make provisions regarding election to Municipalities. In Maharashtra, the State Election Commissioner may by order delegate any of his powers and functions to any officer of the Corporation not below the rank of the Ward Officer according to section 18(2) of the MMC Act.
The High Court held that according to an SEC order from January 27, 2005 there is a bar on re-drawing the limits of a municipal corporation six months before the election. However, "The bar does not apply to alteration of Ward boundaries within the Corporation area."
Case Title: Saurabh Ashok Nikam vs State of Maharashtra
Citation: 2022 LiveLaw (Bom) 48
Observing that affinity test is not the litmus test for a Caste Validity Certificate when family members' documents from as far back as the year 1927 show the same caste, the Bombay High Court directed issuance of caste certificate to the petitioner before the court.
"In our view, if anyone claims he belongs to a particular caste, one cannot expect that such person should use traditions and traits of that community in his day to day life, as due to modernisation, the present lifestyle of particular community may not match with traditional characteristics of their tribe community. The affinity test is not a litmus test," a division bench ruled recently.
The bench, by the abovementioned observation, also negated the Caste Scrutiny Committee's observations that the petitioners dialect of 'impure Marathi' was differed from the Thakur community's dialect. Moreover, the petitioner's festival and marriage rituals were performed the Hindu way instead of the traditional Thakur community way.
Case Title: Amitabh Bachchan & Anr. V/s. The Municipal Corporation of Gr.Mumbai & Ors.
Citation: 2022 LiveLaw (Bom) 49
The court protected actor Amitabh Bachchan and his wife Jaya Bachchan for 11 weeks over notices for acquisition of a part of their Juhu land for road widening. This is the same plot on which their bungalow Prateeksha stands.
It directed the Municipal Commissioner to decide a February 17, 2022 representation made by the family within six weeks. If required by the petitioners or the commissioner, a personal hearing may be given, the bench said.
The Bachchans had contended that the notices fall under a section of the Mumbai Municipal Corporation Act that is inconsistent with safeguards under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and therefore void.
Case Title: Hiten Dhirajlal Mehta vs Bhansali Productions
Citation: 2022 LiveLaw (Bom) 50
There can be no prohibition on a film's exhibition in the absence of a challenge to the censor certificate issued by the Central Board for Film Certification (CBFC), the Bombay High Court held refusing any reliefs in a clutch of petitions against the movie Gangubai Kathiawadi which was due for release on February 25.
"The rule of exhaustion of an efficacious alternative remedy applies also in a public interest litigation as it does in respect of a litigation initiated in private interest," a division bench of Chief Justice Dipankar Datta and Justice MS Karnik observed dismissing two PILs and disposing of a petition.
Case Status: Federation of Retail Trade vs State of Maharashtra
Citation: 2022 LiveLaw (Bom) 51
The Bombay High Court upheld the Maharashtra government's decision making it mandatory for all shops and establishments in the state to display signboards in Marathi written in the Devanagri script, and rejected a petition challenging the decision with cost.
"A Public purpose is sought to be achieved by the said Rule. There is a broader public purpose and rationale. Marathi may be the official language of the state government, but it is an undeniably common language and mother tongue of the state… It has its own extremely rich and diverse cultural traditions extending to every field of endeavour from literature to theatre and beyond. There are texts in Marathi which are expressed and written in Devanagri," the division bench of Justices Gautam Patel and Madhav Jamdar observed.
Case Title: Kishor Ramesh Sohoni Versus Union of India & Ors.
Citation: 2022 LiveLaw (Bom) 52
The Bombay High Court recently directed the Reserve Bank of India to replace a man's demonetized notes worth Rs 1.6 lakh with new and valid currency notes.
The division bench comprising Justice Gautam Patel and Justice Madhav Jamdar passed the order in the petition filed by Kishor Sohoni, who had deposited the said amount, in cash, with the police station, pursuant to Court orders, prior to demonetization.
Case Title: High Court on its own motion (in the matter of Jilani Building at Bhiwandi) vs Bhiwandi Nizampur Municipal Corporation & Others
Citation: 2022 LiveLaw (Bom) 53
In a landmark judgement the Bombay High Court issued a slew of directions regarding action to be taken against illegal construction and in the event of building collapses. The court emphasized the need for mass public housing.
The court directed the Municipal Commissioner to take action prosecute officers found to be aiding the non-removal of illegal construction beyond six months under Municipal laws, in addition the relevant provisions of the Indian Penal Code, apart from initiating disciplinary proceedings.
It held that for any new slum project, an NOC stating that the land is not required for public purpose would be necessary. Moreover, if the land is required for public purpose, it must be cleared within a year and slum dwellers can be relocated in Mumbai and neighbouring areas.
The court also held that the MCGM, being the planning authority, was not barred from implementing provisions of the MMC Act and the MRTP Act just because an area is declared a slum. This would especially apply if the structures are dilapidated and/or in any manner unauthorized.
Case Title: Nanasaheb Vasantrao Jadhav vs State of Maharashtra and Ors.
Citation: LiveLaw 2022 (Bom) 54
Despite finding irregularities and political influence by Sharad Pawar and his family members in extending largesse to Maharashtra's only private hill station project called Lavasa, the HC dismissed the petition challenging the project on the ground of delay.
"At this distance of time, when even Lavasa Corporation's existence is under a cloud, the contentions as raised by the amicus as well as the petitioner as regards inertia to call for tender/auction, unlawful permissions and unauthorized change of rates, in the facts of this case, are reduced to mere academic interest rather than of practical importance. The objection relating to gross delay assumes importance in view of several subsequent or intervening events after accrual of the cause of action to move the Court. Although the cause of action arose from 1996, the petitioner approached the Court for the first time in 2011, and thereafter in 2013 and finally in 2018," the bench observed.
10. Child Born Out Of POCSO Crime A "Victim" As Defined Under Section 2(wa) CrPC : Bombay High Court
Case Title: Ramesh Tukaram Vavekar v. State of Maharashtra & Anr.
Citation: 2022 LiveLaw (Bom) 55
Reducing the life sentence awarded to a rape convict to 10 years, the Bombay High Court directed him to pay compensation to the child born out of his illicit acts observing that the baby was also "victim" as contemplated under Section 2(wa) of the CrPc.
The victim had not only been abandoned by the appellant but also by her real mother(PW 1). They did not stop there but had put the life of the newly born child into jeopardy by sending him in an Orphanage. In view of Section 2(w a) of the Code of Criminal Procedure, the "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and expression "victim" includes his or her guardian or legal heir. The child born to the victim is indeed her legal heir and also a victim in view of the definition of "victim" and therefore, he must be adequately compensated for as it was the appellant who is responsible for bringing him in this world and then abandoning him at the mercy of an Orphanage.
IMPORTANT UPDATES
Case Title: The Directorate of Enforcement vs Mohammed Nawab Mohammed Islam Malik @ Nawab Malik
Observing that as per section 3 of the Prevention of Money Laundering Act, 2002, the offence of money laundering is "continuing in nature and it continues till such time a person [is] enjoying the proceeds of crime by its concealment or possession or acquisition or use of untainted property or use or projecting the same as untainted property" the special judge rejected the argument made on behalf of Nawab Malik that an offence from the year 1999 cannot be investigated now and custody cannot be granted.
Nawab Malik, a cabinet minister in the Maharashtra government, was arrested by the Enforcement Directorate on February 23, 2022 under PMLA and remanded in ED custody till March 3 by Special Judge Rahul Rokade. The Maharashtra Minister is now admitted to the State-run JJ Hospital.
Case Title: Rhea Laila Pillai vs . Leander Adrian Paes
Ruling that tennis star Leander Paes knew model and-Art of Living Instructor Rhea Pillai was married to Actor Sanjay Dutt when he started living-in with her in 2003-05, a Metropolitan Magistrate held their relationship to be 'in the nature of marriage' and declared Paes liable of causing economic and mental violence under the Domestic Violence Act.
"The consensual sexual relationship between married individual out of their relationship of marriage is not prohibited, except few exceptions…Merely because socially such a practice is unacceptable the Applicant can not be deprived of her rights," the court said and ordered Paes to pay Pillai Rs 1 lakh maintenance and Rs 50 thousand rent per month. Paes already bears all his daughter's expenses.
After two judges recused themselves from hearing petitions arising out of the Bhima Koregaon – Elgar Parishad Case, Chief Justice Dipankar Datta of the Bombay High Court constituted a third bench to hear the cases at the earliest.
After Justice PB Varale's bench, which has the criminal assignment, recused from hearing matters earlier this month, the alternate bench of Justice SS Shinde also recused from taking up petitions connected to the case.
Chanda Kochhar, former Chief Executive of the ICICI Bank, has filed a Suit before the Bombay High Court against the bank seeking "specific performance of her entitlements and benefits that was unconditionally provided to her when the Bank accepted her early retirement."
According to the Suit, the Bank accepted her early retirement on October 4, 2018, and had unconditionally agreed to honour certain commitments and contractual obligations towards her entitlements and benefits, which it later "wrongfully resiled from."
The National Investigation Agency has sought dismissal of the application filed by Varavara Rao, Vernon Gonsalves and Arun Ferreira seeking bail and factual corrections in the Bombay High Court's order refusing them default bail.
In their reply tendered to the Bombay High Court, the agency cited the embargo under section 362 of CrPC to alter or review judgements once a petition is decided on merits.
16. Decision On Local Train Travel For Unvaccinated By Feb 25 – Maharashtra Govt To Bombay High Court
The Maharashtra government informed the Bombay High Court that it will take a final decision on permitting local train travel for unvaccinated persons by February 25, 2022.
While the State agreed to withdraw circulars & SOPs of July 15 & August 10 and 11, last year, it assured the bench that it would review subsequent circulars with similar curbs.
"We hope and trust that in keeping view of present situation committee will take well-informed decision because certain illegal decisions brazenly violated fundamental rights," Chief Justice Dipankar Datta observed.
Former Narcotics Control Bureau (NCB) Zonal Director Sameer Wankhede filed two petitions in the Bombay High Court challenging the action by Thane Collector and police for allegedly obtaining a liquor licence for his hotel through fraud and misrepresentation of personal details in 1997.
Wankhede states that he was apparently a minor of age 17 at the time of the alleged offence by his mother. Wankhede's mother passed away in 2015.
While he was granted relief and protection from coercive action in the quashing petition, a coordinate bench found no urgency in his civil plea challenging the cancellation of his liquor license.